CYRUSONE TERMS AND CONDITIONS THE NETHERLANDS SPECIFIC PROVISIONS
If the Seller is located in The Netherlands, the country-specific provisions below will replace the equivalent provisions in the CyrusOne Online Terms and Conditions as follows:
1. DEFINITIONS; ADDITIONAL TERMS
Section 1 (“Definition and Payment”) is supplemented with the following:
vii. “Termination/Terminate” means any manner through which an agreement is brought to an end and/or (automatically) expires, including Rescission and Cancellation.
viii. “Rescission/Rescind” means any Termination which under the applicable law creates the obligation for the parties to undo, to the extent permitted, desired and communicated, any performance rendered prior to the date of such Termination.
x. “Default” means the position referred to in Article 6:81 of the Dutch Civil Code as “verzuim”.
3. PERFORMANCE OF SERVICES AND DELIVERY OF GOODS/DELIVERABLES
Subsection 3iii (“Quantity”) is deleted and replaced by the following:
iii. Quantity. Seller shall deliver the quantity of Goods specified in the Purchase Order. The quantity of Goods, Deliverables and/or Services specified in the Agreement may not be changed without Buyer’s prior written consent. Quantities of Goods, Deliverables and/or Services delivered in excess of those stated in the Agreement may not be accepted. Seller shall not deliver the Goods, Deliverables and/or Services in instalments without Buyer’s prior written consent. Where it is agreed that Goods, Deliverables and/or Services are to be delivered in instalments, they may (at Buyer’s sole option) be invoiced and paid for separately. However, failure by Seller to deliver any one instalment on time or at all or any defect in an instalment shall be deemed a material breach of this Agreement and Buyer shall be entitled to Terminate (“ontbinden”) the applicable Purchase Order. The Buyer shall, as soon as Seller is in Default, be entitled to Terminate and Rescind the Purchase Order on written notice by Buyer. Buyer may reject all overages or shortages of the quantity of Goods. Any rejected Goods shall be returned to Seller at Seller’s sole risk and expense. Buyer shall have no obligation to keep, preserve, or pay (in whole or in part) for any such nonconforming Goods. If Buyer does not reject the Goods and instead accepts the delivery of Goods at a reduced quantity, the Contract Price shall be adjusted on a pro-rata basis. If Buyer does not reject the Goods and instead accepts delivery of the Goods at an increased quantity, there shall be no adjustment to the Contract Price.
Subsection 3iv(“Inspection and Rejection of Nonconforming Goods”) is deleted and replaced by the following:
Iv.Inspection and Rejection of Nonconforming Goods. Buyer has the right to inspect the Goods, Services and/or Deliverables after delivery and/or Seller’s performance under the Agreement. Buyer, at its sole option, may inspect all or a portion of the Goods, Services and/or Deliverables, and may reject all or a portion if it determines the Goods, Services and/or Deliverables are nonconforming or defective. If Buyer rejects any portion of the Goods, Services and/or Deliverables, Buyer has the right, at its sole option and in addition to any other rights or remedies it may have, to: (a) Terminate the Agreement, (b) accept the Goods, Services and/or Deliverables at a reasonably reduced price, as determined by Buyer, (c) reject the Goods, Services and/or Deliverables and require repair or replacement of the rejected Goods, Services and/or Deliverables, (d) reject a portion of the Goods, Services and/or Deliverables and accept a portion of the Goods, Deliverables and/or Services at a reduced price, or (e) correct, rework, and/or repair the Goods, Services and Deliverables with all costs associated therewith to be charged to and paid by Seller. If Buyer requires replacement of the Goods, Services and/or Deliverables, Seller shall, at its expense, within five (5) days of written notice from Buyer, replace the nonconforming or defective Goods, Services and/or Deliverables and pay for all related expenses, including but not limited to transportation charges for the return and replacement of the defective Goods, Services and/or Deliverables. If Seller fails to timely deliver replacement Goods, Services and/or Deliverables, Buyer may replace them with services, goods and/or deliverables from a third party and charge Seller the cost thereof and/or Terminate this Agreement for cause pursuant to Section 13(iii). If Buyer elects to accept nonconforming, require replacement, or correct, rework and/or repair nonconforming Goods, Services and/or Deliverables in accordance with (b), (c), (d), or (e) of this section, the terms of this Agreement shall apply to all such replacements and the replacement Goods, Services and Deliverables shall have the same V Feb2021
warranties as set forth in this Agreement from the date the Goods, Services and/or Deliverables are accepted. Buyer shall have no obligation to pay Seller until Goods, Services and Deliverables are adequately remedied.
8. WARRANTIES AND REMEDIES
Subsection 8v(“Remedies”) is deleted and replaced by the following:
V. Remedies. Within five (5) days of written notice of Seller’s default on any warranty, Seller will promptly replace or repair the defective or nonconforming Goods, repair, re-perform, or accelerate the Services, and/or correct the Deliverables, as requested and/or necessary, in Buyer’s sole discretion, at Seller’s sole cost and expense. If Seller is unable to cure its default within five (5) days, then Buyer will, in addition to other remedies available hereunder, including but not limited to Buyer’s right to Terminate all or the remainder of the Agreement and seek reimbursement of all related costs, be entitled to a full and prompt refund in respect of such nonconforming Goods, Services and Deliverables and Seller shall be liable to Buyer for all costs (including but not limited to the costs of repairing or re-procuring the Goods, completing and/or re-performing the Services, and/or completing the Deliverables, as well as all legal fees, expert and professional fees, and court and arbitration costs), losses, damages, penalties, and expenses incurred by Buyer and/or related to Seller’s breach of the Agreement and/or any warranty.
13.TERMINATION AND SUSPENSION
Subsection 13(ii) (“Buyers Termination for Convenience”) is deleted and replaced by the following:
ii. Buyer’s Termination for Convenience. Buyer may in its sole discretion, terminate this Agreement, or portions thereof, for its convenience, in whole or in part, upon written or electronic notice, at any time, to Seller. If this Agreement is so terminated, unless otherwise directed by Buyer, Seller shall immediately stop performance and Seller’s sole and exclusive remedy is payment of undisputed amounts otherwise owed for Services properly performed and accepted and/or Goods delivered and accepted in accordance with this Agreement, as applicable, prior to the effective date of the termination. Upon termination pursuant to this section, Seller shall deliver to Buyer all Goods not terminated and all Deliverables, including any and all Work Product. In no event shall Seller be paid loss of anticipated profits or revenues or other economic loss arising out of or resulting from such termination. If the Agreement which by it nature and content has not been entered into for an indefinite period of time, it may be Terminated for Convenience in writing by Buyer at any time. If no notice period has been agreed between parties, a reasonable period of at least one (1) month must be observed in the Termination.
Subsection 13(iii) (“Buyers Termination for Cause”) is deleted and replaced by the following:
iii. Buyer’s Termination for Cause.
a. Within fourteen (14) days of written or electronic notice from Buyer and Seller’s failure to cure any of the following, Buyer may Terminate and Rescind the Agreement for any of the following events constituting Default:
1. Seller’s failure to timely and accurately provide the Goods, Services and/or Deliverables;
2. Seller’s failure to supply sufficiently qualified personnel;
3. Seller’s failure to make prompt payment to its carrier, subcontractors, or suppliers;
4. Seller provides nonconforming or defective Goods or Deliverables;
5. Seller disregards any applicable law, statute, ordinance, code, rule, instrument, regulation, directive, enactment, or orders of any public authority having jurisdiction;
6. Seller breaches any warranty made by Seller under or pursuant to the Agreement; or
7. Seller is otherwise guilty of a material breach of a provision of the Agreement.
b. Buyer can Terminate of Cause or suspend the Agreement in writing, in whole or in part, with immediate effect without notice of Default, if:
1. Seller has a voluntary or involuntary insolvency proceeding commenced by or against it, or Seller’s property is assigned for the benefit of creditors or goes into receivership or other insolvency proceeding, including foreign insolvency proceeding(s);
2. Seller is or becomes insolvent or is unable or generally fails to pay debts as they become due, or suspends or threatens to suspend making payments with respect to all or any class of its debts;
3. Seller discontinues business, dies or commences to dissolve, wind-up, or liquidate itself or an order has been made, petition presented, resolution passed or meeting convened for the winding up of, or making of any administration order for, Seller; V Feb2021
4. a receiver or examiner has been appointed over the whole or any part of the property, assets or undertaking of Seller;
5. a composition in satisfaction of debts, scheme of arrangement, or compromise or arrangement with creditors or members (or any class of creditors or members) has been proposed, sanctioned or approved in relation to Seller;
6. an encumbrancer takes possession of, or a trustee or administrative receiver or similar officer is appointed in respect of, all or any part of the business or assets of Seller, or distress or any form of execution is levied or enforced upon or sued out against any such assets and is not discharged within seven (7) calendar days of being levied, enforced or sued out;
7. Seller ceases or threatens to cease carrying on the whole or any material part of its business and that cessation, in the reasonable opinion of Buyer, would be likely to adversely affect Seller’s ability to observe and perform properly and punctually any of its obligations under this Agreement;
8. anything analogous to any of the events described in Section 13(iii)(a)(1) to 13(iii)(a)(13) inclusive occurs under the laws of any applicable jurisdiction; or
9. Seller or its current owner(s) transfer a substantial portion of the property or ownership interest in Seller.
c. When Buyer Terminates the Agreement for Cause for Seller’s Default, Seller shall not be entitled to receive further payment until the Services are complete and all Good and Deliverables are delivered, or if Buyer elects not to complete such services or procures delivery of any remaining goods or deliverables elsewhere, until Buyer has fully accounted for all costs by Buyer as a result of Seller’s Default.
d. If it is determined that Buyer’s termination for Default was wrongful, the termination shall be deemed a termination for convenience pursuant to Section 13(ii).
Subsection 16(iii) is deleted and replaced by the following:
iii. Either party may Terminate this Agreement for Convenience with thirty (30) days’ prior written notice to the other if Seller may not deliver or grant access to the Goods and/or Services due to an embargo or other comparable trade sanction which is expected to be in place for six (6) months or longer.
23. RIGHT TO AUDIT
Section 23 is deleted and replaced by the following:
For a period of two (2) years after Seller’s completion of Services or the date on which Deliverables and/or Goods were supplied pursuant to this Agreement, whichever is later, Buyer shall have the right to perform audits from time to time (i) of Seller’s costs and other items related to the terms of this Agreement, (ii) for purposes of verifying compliance with the terms of this Agreement and (iii) of Seller’s information security practices, including but not limited to the physical systems, written policies, procedures and vulnerability testing of systems and infrastructure relevant to the delivery of the Services. Seller shall, upon reasonable request and during reasonable business hours, make available for examination and reproduction by Buyer and its duly authorized agents, such books, records, and invoices of Seller as may be necessary to perform an audit pursuant to this section. If any audit report establishes Seller’s non-compliance with the Agreement (including the requirements of any attachments or modifications hereto): (i) Seller shall submit to Buyer, within thirty (30) days of its receipt of the relevant audit report from Buyer, a plan to improve and remediate Seller’s performance to the level required by this Agreement; (ii) Seller shall be immediately deemed in Default of the Agreement and Buyer may, without any additional notice to Seller, Terminate the Agreement pursuant to Section 13(iii) herein; and (iii) Seller shall reimburse Buyer for all of Buyer’s costs related to the audit and all other damages suffered by Buyer as disclosed by the audit (including any overpayments revealed and all related attorney’s fees).
25. DISPUTE RESOLUTION AND GOVERNING LAW
Subsection 25(vi)(c) (“Binding Dispute Resolution”) is deleted and replaced by the following:
Vi(c)Binding Dispute Resolution. For any Claim(s) subject to, but not resolved under, subsections (a) and (b) above, or as otherwise elected by Buyer pursuant to this Section 25, parties shall have the option to have the Claim(s) determined either by a court of competent jurisdiction or by arbitration, in accordance with this Section 25(vi)(c). Parties shall exercise their option by commencing either a court action or an arbitration proceeding.
Commercial General Liability/ Bodily Injury/Property Damage
€1,000,000 Per Occurrence
Commercial Automobile – Liability Mandatory Limits Apply
€5,000,000 Per Occurrence – providing excess follow form of above liability coverage
Workers Compensation – In accordance with the State Scheme
Employer’s Liability – In accordance with the State Scheme
Replacement cost for all personal property including tools and equipment.
CyrusOne, Inc. and all subsidiaries are added as an Additional Insured on Public Liability / General Liability policy as respects operations of the Named Insured and where required by written contract. Waiver of Subrogation applied in favor of Certificate Holder on Public Liability / General Liability policy.